That anti-gay bill in Arkansas actually became law today. Why couldn’t activists stop it?
Monday was the deadline for Arkansas Gov. Asa Hutchinson (R) to veto SB 202, a law that will effectively force cities and towns in the state to permit gay discrimination. (AP Photo/Danny Johnston, File)
Monday
was the deadline for Arkansas Gov. Asa Hutchinson to veto SB 202, the
anti-anti-discrimination bill that seeks to prevent cities and counties
from protecting the civil rights of gay people.
The
bill passed the legislature 10 days ago. Hutchinson said he would allow
it to become law. During the past week, pressure had been mounting on
the governor to change his mind.
Five days ago, the Arkansas chapter of the Human Rights Campaign released a statement condemning
the bill. “Discrimination is not an Arkansas value, and the Governor
should take swift, immediate action to veto SB202,” said chapter
director Kendra R. Johnson.
On Saturday,
national groups like the American Civil Liberties Union, Lambda Legal,
and the National Center for Lesbian Rights joined in asking Hutchinson
to veto it.
“There
is nothing but discriminatory intent here,” the groups’ press release
reads. “And no valid public interest can possibly be served by allowing
private businesses to discriminate based on sexual orientation, gender
identity or other characteristics that might be covered by local
ordinances.”
Finally on Sunday night, musician and gay icon Cher weighed in on the bill, accusing the governor of “hanging the LBGT community out to dry”:
But
none of that, not even the voice of Cher, could change the governor’s
mind. Today, he allowed it to become law, albeit in a backdoor manner.
Hutchinson
had said earlier this month that he harbors reservations about the
bill, so he has let it pass without his signature. The law will go into
effect 90 days after the legislative session ends later this summer.
Where were the national voices?
Several
activists blamed the absence of national politicians or corporations
speaking out against SB 202. Neither Bill nor Hillary Clinton, even with
their Arkansas ties, have issued public statements about it. Until
today, neither had some of the state’s largest employers, like Wal-Mart,
Tyson Foods, and J.B. Hunt, a trucking company.
“What
we haven’t heard from are businesses inside the state, though some of
those businesses are very supportive of LGBTQ grassroots organizations,”
said Laura Phillips, an activist based in Fayetteville.
“It’s
like that saying,” she continued, invoking a Martin Luther King Jr.
quote, “that the silence of your friends is worse than the voices of
your enemies. The silence from the business side has just been
deafening, and that’s the most terrifying part.”
In an e-mail Monday,
a Tyson spokesperson said that the company does not comment publicly on
pending legislation. He added that the company already has a gay
non-discrimination policy.
Wal-Mart eventually came out against SB 202 late Monday
night, after business hours. The company was founded in Arkansas and is
headquartered in Bentonville. It also has a 90 out of 100 score on the
Human Rights Campaign’s Corporate Equality Index, which is supposed to
reflect its equitable treatment of its LGBT employees.
Earlier on Monday, the gay outreach arm of the United Food and Commercial Workers International Union sent a letter to the HRC asking it to suspend Wal-Mart’s rating.
“We don’t feel that 90 is an accurate score for Wal-Mart,” said Tim Schlittner, a spokesperson for UFCW OUTreach on Monday afternoon. “If they truly supported equality they would have spoken out against this bogus bill in their backyard.”
On Monday
evening, upon hearing of Wal-Mart’s last-minute announcement,
Schlittner sent this statement: “This meaningless gesture is a day late
and a dollar short.”
In Arizona
last year, a similar anti-gay measure was vetoed by Gov. Jan Brewer
after complaints from dozens of high-profile politicians and
corporations. Delta Airlines, Mitt Romney, PetSmart, John McCain, and
Apple were just some of the strange bedfellows who joined in asking
Brewer to stop the bill, which would have allowed, for instance,
businesses to refuse to serve gay people.
In
Arkansas, where there has been less national attention, the fight
against SB 202 exposed some of the fault lines in the gay community.
One of the early voices calling for a veto was an activist in Brooklyn named Scott Wooledge, who quickly put up a protest Web site after
SB 202 passed the legislature—days before the HRC’s own statement last
Wednesday calling for a veto. (The HRC’s Arkansas chapter had previously spokenout against SB 202 in early February when it had been introduced.)
“It
was a labor of love,” said Wooledge, who also worked to rally attention
around the Arizona bill last year. Compared to the Arizona effort, the
Arkansas fight was unusually quiet, Wooledge said. “For some reason,
many LGBT organizations have been slow to respond on state level
fights,” he explained. “Mostly I stepped up because I felt like there
was not going to be a national response.”
On Friday,
Michelangelo Signorile at the Huffington Post accused the Human Rights
Campaign of not campaigning hard enough in the state, and for not
putting enough pressure on corporations to speak up against the bill. He
questioned the HRC’s connections with Republican donors.
Signorile
was directing much of his criticism at HRC president Chad Griffin, who
hails from Arkansas. “Whatever the reasons, many LGBT national leaders
are nowhere on this terrible and potentially enormously impactful law,”
Signorile wrote on Friday morning. (Griffin eventually released astatement to the Arkansas Times in a blog post dated Friday afternoon.)
Johnson, the group’s Arkansas director, said in an e-mail statement Monday night that the local chapter “fought to defeat S.B. 202 since the day it was introduced.”
“Unfortunately,
large new conservative majorities in both houses of the state
legislature pushed the legislation through quickly,” she said.
Tentative next steps
WIth
SB 202 looking like an inevitability, Arkansas’s gay activists are
talking about several options. One would be to petition for a popular
referendum. Putting the law on the ballot would require the signatures
of at least 6 percent of registered Arkansas voters.
Another tactic would be to challenge the law in court, which may prove tricky.
A
specific part of the Constitution—the Equal Protection Clause in the
14th Amendment—says that states must not deprive any person “the equal
protection of the laws.” The courts have interpreted this to mean that
the government cannot discriminate against people, at least without good
reason. How compelling this reason must be depends on the context.
It’s a matter of much legal debate.
Twenty years ago in Romer v. Evans,
the Supreme Court used to Equal Protection Clause to strike down a law
in Colorado that specifically prohibited gay people from receiving
protection against discrimination. The Court ruled that Colorado was
targeting a minority group for no good reason. “[The law] seems
inexplicable by anything but animus toward the class that it affects; it
lacks a rational relationship to legitimate state interests,” the
decision reads.
To
wriggle around this legal precedent, SB 202 distinguishes itself from
Colorado’s law in two ways. First, SB 202 carefully avoids mentioning
gay people at all. Instead, it says that Arkansas’s cities and counties
cannot exceed state law in protecting people from discrimination. Since
Arkansas permits gay discrimination, the state’s conservative lawmakers
have effectively required its more liberal cities to permit gay
discrimination as well.
Second,
SB 202 offers a concrete reason for its existence. It claims to make
life easier for businesses operating in the state by making
discrimination laws the same everywhere. “The purpose of this [bill] is
to improve intrastate commerce by ensuring that businesses,
organizations, and employers doing business in the state are subject to
uniform nondiscrimination laws and obligations,” the legislation reads.
Whether
the courts think this reason is good enough remains to be seen.
Tennessee passed a very similar law a couple years ago, which gay groups
challenged in court with an Equal Protection Clause argument. They
claimed that despite its vague language, Tennessee’s law was clearly
written to curtail the rights of gay people. The courts threw the case
out on a technicality, so that argument was never tested.
Both
a referendum and a court challenge will take time. For now, the law has
already affected the state’s reputation. Phillips, the Fayetteville
activist, worries that SB 202 will drive young gay people out of the
state.
“I
spoke to a campus pride group last week” she said. “They’re a bunch of
very intelligent, very bright students. They’re the future of Arkansas.
And they’re being told that they’re not welcome here. That’s the message
this is sending.”
Update: An HRC spokesperson notes that the HRC’s Arkansas chapter wason record against SB 202 since it was introduced into the Arkansas legislature in early February.
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